Krasti Singh Chauhan, Student, ICFAI Law School Dehradun
The title addresses a common question asked by a lot of WhatsApp users, especially the young generation boys who are engaged in sharing nude pictures, semi-nude selfies and intimate moments over WhatsApp and other chat messaging applications in a greater number than the people of other gender and generations.
The Answer to it is, that although many of you may find it a surprise, but Yes it is illegal to share indecent photos in a WhatsApp group in India. In fact, whoever shares indecent photos in a WhatsApp group can be prosecuted under Section 67 and 67A of the Information Technology Act, 2000. Sharing nude pictures over WhatsApp can be illegal even if the CONSENT of both the sender and receiver is involved. But don’t worry the police isn’t spying on you to see pictures you send and will not catch you for this offence. However, if there is any criminal action later on, this act can be in question.
I want to grab attention to next point of mine to give readers a clearer picture that there is no specific law against sharing nude or indecent pictures over WhatsApp group neither is there any enough precedent. But if we look closely at Section 67 of the IT Act, 2008, it goes on to say that if somebody publishes or transmits any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment with either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.
Section 67A- Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form
Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.
Let’s go into literal meanings of few terms used in the above sections to get a wider understanding. India and its thin skin for all things that are allegedly obscene is well known. ‘Obscenity’ as defined in Section 292 of the Indian Penal Code, 1860 (IPC). Every content that is “obscene” in other forms may fall under Section 67 of the Act and can attract punishment. The word “lascivious” in the Act is pretty wide and can be known to include instances of inciting lust and depraving prurient individuals. “Prurient” here means having or encouraging an excessive interest in sexual matters, especially the sexual activity of others.
Hence the above two sections clearly say that if an individual is engaged in sharing or exchanging any picture or video which is obscene in nature and is in an electronic form may attract charges towards him under the above stated provisions. Further punishment can also be imposed under Section 354 dealing with outraging the modesty of a woman, 354C dealing with Voyeurism and 292A dealing with putting into circulation a grossly indecent or scurrilous picture. In other words, 66A is used along with other sections of Indian Penal Code, as Section 66A is not very powerful itself, but empowers other IPC sections.
What words or actions are offensive under Section 66A?
It is rather difficult to say that which words are to be used and which are not to be used. It is subjective in nature. The photos that cause annoyance, enmity etc. are scanned on the purview of Indian Penal Code. While investigating the officers pay wide attention to the history of conversations which plays as a major role in identifying the intent of the accused. Given that this may be a subjective assessment, the courts have, over the years, attempted to provide some standards for interpreting these expressions. Initially, the courts in India were following the archaic Hicklin test, according to which a material that tended to deprave and corrupt those whose minds are open to such immoral influences and into whose hands the material may fall was obscene, regardless of its artistic or literary merit. More recently the Supreme Court has shifted to a ‘community standards test’, according to which a particular material would be obscene if it is suggestive of a depraved mind and it is designated to excite sexual passion in persons who are likely to see, hear or read it, as the case may be.
Can the Police refuse to lodge your FIR?
The Section 66A is cognizable i.e. anyone can be arrested without an arrest warrant hence it becomes difficult for the police to decline from registering the case. However, police has all the rights to try to settle or pacify the matter within the two parties. But, if the parties are strongly willing to lodge FIR, then the police department is left with no option but to take action after registering the case.
How does Police Track you on WhatsApp?
To procure data on any case, Cyber Crime Branch Cell of the respective state has to go through a series of levels. The cell has various experts who can track data very fast in variable mediums. Talking specifically about WhatsApp since, WhatsApp makes use of Phone numbers, the data is tracked very easily and efficiently.
Does Law distinguishes between An Adult and A Minor in such cases?
Yes, while Section 67A is a general provision targeted at material which contains sexually explicit act or conduct, Section 67B is a special provision aimed at penalizing such material depicting children (i.e. persons below 18 years of age.) Being so, Section 67B is even wider in its coverage.
Consent as a Defence?
As I earlier mentioned that it is simply immaterial whether the sender and the receiver consented to exchange of such objectionable content or not. It would be still an offence. Criminal culpability under these sections is not precluded on the ground that the recipient does not object to such obscene or sexually explicit material. Notably, even the exceptions stipulated in the proviso to section 67B are limited to what may be justified for the public good. This means that technically, even a sexually explicit private conversation between two consenting adults could be labelled criminal, if the messages are sent in an electronic form.
What to do if you are a passive member of a group where such photos are shared?
If you ever fall prey to such an unfortunate situation, the first thing to do is to raise voice against it. You should make every effort to make that message get deleted as soon as possible. Believe me, turning a blind eye and remaining a mute spectator to the incident will only make you a partner in the crime. In case, your efforts of getting the message or content deleted fails then eventually it is your responsibility to leave that group immediately and also report such content to either WhatsApp or Police or The Cyber Cell.
Conclusion
Concluding, I would say that obviously accessing obscene content is not illegal but at the same time hosting and transmitting such content is punishable by law. While there are way a lot of arguments that restraining the access to such things would violate the Article 21 (Right To Personal Liberty, Constitution of India). There are different perspectives on naked surfing being natural to human behavior but so is murder, rape, theft and others then can we accept those also? Obviously No, hence such laws and regulations are utterly necessary to give youth a better direction towards using his freedom in a way that does not infringes somebody else’s privacy.
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